Considered ethically. 108. It will be manifest, however, to the attentive reader of Grotius in this chapter that he treats the subject of contract as a part of ethics rather than of jurisprudence; and it is only by the frequent parallelism of the two sciences that the contrary could be suspected. Thus, he maintains that, equality being the principle of the contract by sale, either party is forced to restore the difference arising from a misapprehension of the other, even without his own fault, and this whatever may be the amount, though the civil law gives a remedy only where the difference exceeds one half of the price.[386] And in several other places he diverges equally from that law. Not that he ever contemplated what Smith seems to have meant by “natural jurisprudence,” a theory of the principles which ought to run through and to be the foundation of the laws of all nations. But he knew that the judge in the tribunal, and the inward judge in the breast, even where their subjects of determination appear essentially the same, must have different boundaries to their jurisdiction; and that, as the general maxims and inflexible forms of external law, in attempts to accommodate themselves to the subtleties of casuistry, would become uncertain and arbitrary, so the finer emotions of the conscience would lose all their moral efficacy, by restraining the duties of justice to that which can be enforced by the law. In the course of this twelfth chapter we come to a question much debated in the time of Grotius, the lawfulness of usury. After admitting, against the common opinion, that it is not repugnant to the law of nature, he yet maintains the prohibition in the Mosaic code to be binding on all mankind.[387] An extraordinary position, it would seem, in one who had denied any part of that system to be truly an universal law. This was, however, the usual determination of casuists; but he follows it up, as was also usual, with so many exceptions as materially relax and invalidate the application of his rule.
[386] C. 12, § 12.
[387] § 20.
Promissory oaths. 109. The next chapter, on promissory oaths, is a corollary to the last two. It was the opinion of Grotius, as it had been of all theologians, and, in truth, of all mankind, that a promise or contract not only becomes more solemn, and entails on its breach a severer penalty, by means of this adjuration of the Supreme Being, but may even acquire a substantial validity by it in cases where no prior obligation would subsist.[388] This chapter is distinguished by a more than usually profuse erudition. But notwithstanding the rigid observance of oaths which he deems incumbent by natural and revealed law, he admits of a considerable authority in the civil magistrate, or other superior, as a husband or father, to annul the oaths of inferiors beforehand, or to dispense with them afterwards; not that they can release a moral obligation, but that the obligation itself is incurred under a tacit condition of their consent. And he seems, in rather a singular manner, to hint a kind of approval of such dispensations by the church.[389]
[388] C. 13.
[389] § 20. Ex hoc fundamento defendi possunt absolutiones juramentorum, quæ olim a principibus, nunc ipsorum principum voluntate, quo magis cautum sit pietati, ab ecclesiæ præsidibus exercentur.
Engagements of kings towards subjects. 110. Whatever has been laid down by Grotius in the last three chapters as to the natural obligations of mankind, has an especial reference to the main purport of this great work, the duties of the supreme power. But the engagements of sovereigns give rise to many questions which cannot occur in those of private men. In the chapter which ensues, on the promises, oaths, and contracts of sovereigns, he confines himself to those engagements which immediately affect their subjects. These it is of great importance, in the author’s assumed province of the general confessor or casuist of kings, to place on a right footing; because they have never wanted subservient counsellors, who would wrest the law of conscience, as well as that of the land, to the interests of power. Grotius, in denying that the sovereign may revoke his own contracts, extends this case to those made by him during his minority, without limitation to such as have been authorised by his guardians.[390] His contracts with his subjects create a true obligation, of which they may claim, though not enforce, the performance. He hesitates whether to call this obligation a civil, or only a natural one; and, in fact, it can only be determined by positive law.[391] Whether the successors of a sovereign are bound by his engagements, must depend on the political constitution, and on the nature of the engagement. Those of an usurper he determines not to be binding, which should probably be limited to domestic contracts, though his language seems large enough to comprise engagements towards foreign states.[392]
[390] C. 14, § 1.
[391] § 6.
[392] Contractibus vero eorum qui sine jure imperium invaserunt, non tenebuntur populi aut veri reges, nam hi jus obligandi populum non habuerunt. § 14.